The Republic of Kazakhstan, the Subpoena and the Domain Name Registration Company

Republic
of Kazakhstan initiated a California state court lawsuit against 100 unnamed`John Doe’ defendants. Kazakhstan alleged that these defendants hacked
into Kazakhstan's government computer network and stole and published hundreds
of privileged and confidential e-mails from high-ranking Kazakh officials in
violation of California and United States law.

In
connection with that lawsuit, Kazakhstan requested that the King County Superior Court issue a subpoena duces tecum to eNom, Inc., an Internet domain name registration company located
in Kirkland, Washington. The subpoena seeks domain name registrant information
and Internet Protocol (IP) and/or Mac addresses for a website operated by
`Respublika,’ an opposition newspaper based in Kazakhstan that published
several of the stolen e-mails.

The Republic of Kazakhstan v. Does 1-100,
supra.

The Court of
Appeals also noted that

[o]n
appeal, we must interpret Washington's news media shield law, [Revised Code of Washington §] 5.68.010, and determine whether it protects the
information sought by this subpoena. The trial court concluded that the news
media shield law did not apply, and it denied third-party LLC Media–Consult's
(LMC) motion to quash subject to certain modifications. We disagree and
therefore reverse.

The Republic of Kazakhstan v. Does 1-100,
supra.

The Court of
Appeals went on to outline how, and why, this litigation arose:

Appellant
LMC is a Russian limited liability company that operates the online publication
of Respublika. Irina Petrushova, Respublika's founder and editor-in-chief, owns
LMC with her brother. Petrushova founded Respublika in 2000, and the newspaper
has been published online since September 2008. Its main website is
`www.respublika-kaz.info.’

Published
weekly, Respublika principally covers business and politics in Kazakhstan, a
country in central Asia. According to Petrushova, Respublika is `a forum for
expressing opposition to the political regime in Kazakhstan.’ It has
consistently published articles critical of Kazakhstan's President Nursultan
Nazarbayev. As a result, Petrushova asserts, Respublika's journalists have
become targets of an aggressive intimidation campaign. In 2002, Petrushova left
Kazakhstan in fear for her life.

Petrushova
continues to run Respublika's editorial board and report on government
corruption in Kazakhstan. Petrushova claims that the editorial team established
various newspapers over the years, but the government shut down all of
them. Printing houses in Kazakhstan refused to publish Respublika's
newspapers, and the editorial team was forced to publish them on home printers
and in Russia.

According
to Petrushova, in 2010, the Kazakh government blocked access to Respublika's
online portal. As a result, in order to access Respublika's news from
Kazakhstan, Respublika's readers have to use proxy servers and other programs
that can work around domestic blocking. In 2013, a Kazakh court closed websites
associated with Respublika. In 2014, pressure on Respublika mounted in Russia
when Russian authorities seized a server that hosted Respublika's website.

In
early 2015, Kazakhstan claimed it had discovered a major breach of its computer
systems. According to Marat Beketayev, the Executive Secretary of the Ministry
of Justice of the Republic of Kazakhstan, e-mail accounts of several
high-ranking government officials were hacked and thousands of e-mails and
documents were stolen and posted to various websites. Kazakhstan claims that
these e-mails and documents contain confidential and privileged material,
including communications between Kazakhstan and its legal advisers who were
advising the government on various sensitive matters. A website hosted by
WordPress, `https://kazaword.wordpress.com,’ published several of these stolen
e-mails.Respublika also published several of these e-mails, along
with an article critical of the government.

The Republic of Kazakhstan v. Does 1-100,
supra.You can, if you are interested, read more
about the facts outlined above, along with other developments in the news
stories you can find here and here.

The opinion goes on
to explain that

[f]ollowing
these events, Kazakhstan commenced an action in Santa Clara, California
superior court against 100 `John Doe’ defendants, alleging violations of
California and federal law. Kazakhstan also commenced an action against
the unnamed Does in the United States District Court for the Southern District
of New York, seeking injunctive relief and damages.

On
March 4, 2015, Kazakhstan initiated this limited action in King County Superior
Court. Pursuant to [Revised Code of Washington] 5.51.020, the uniform
interstate depositions and discovery act, Kazakhstan sought to serve a subpoena
duces tecum on eNom, Inc., a domain name registration company located in
Kirkland, Washington. For several years, eNom, Inc. has registered the domain name
for Respublika's main website: `www.respublika-kaz.info.’ eNom, Inc. offers a
domain privacy service called `ID Protect,’ which shields a domain name
registrant's personal, identifying information.Respublika uses
eNom's privacy service to shield its current and former registrants'
information.

The Republic of Kazakhstan v. Does 1-100,
supra.

Next, the court
explains that the subpoena duces tecum at issue in this case

requested
certain information associated with Respublika's domain name. Defining `domain
name’ as `www.respublika-kaz.info,’ it requested that eNom produce the
following twocategories of information

Documents sufficient to show all details of all current and former registrants, including
any underlying registrant using a privacy or proxy service, of the Domain Name
including, but not limited to, his or her email address, physical address,
phone number, and billing information, including any updated or revised details
since registration.Documents
sufficient to show the dates, times and corresponding IP Addresses and/or Mac
Addresses from which the Domain Name was registered, created or modified.

The Republic of Kazakhstan v. Does 1-100,
supra.

The opinion also
notes that

LMC,
a nonparty, moved to quash the subpoena. LMC argued that the subpoena was
oppressive and burdensome, violated Washington's news media shield law, and ran
contrary to `core constitutional values.’ It asserted that a protective
order would be ineffective and unworkable and that the court could grant no
effective relief short of quashing the subpoena.

LMC
supported its motion with a declaration from Petrushova. Petrushova detailed
threats against Respublika's members. For example, she asserted that one of
Respublika's printers quit after finding a human skull on his doorstep. In
other examples, Petrushova asserted that she received a funeral wreath that
marked her for death, found a dog's headless body hung from one of Respublika's
window grates with a threatening note, and found a dog's head outside her
apartment door. She also asserted that Respublika's editorial board's office
had been set on fire and that Respublika's newsroom had been firebombed.

The Republic of Kazakhstan v. Does 1-100,
supra.

It also explains
that

[i]n
her declaration, Petrushova also stated several concerns about the consequences
of disclosing information about Respublika's current and former domain name
registrants. She declared that the current owner of the domain is an individual,
not a company. She feared that the Kazakhstan government would bring unfounded
civil and criminal claims against the domain name registrants and that the
registrants would be at risk of physical danger, such as beating, kidnapping,
and unlawful detention. She also worried that the financiers of the domain name
would be persecuted and that the accounts would be frozen. And she expressed
concern about the effect of this disclosure on other opposition journalists:

`Disclosure
of domain registration and hosting details, both current and former, would
undoubtedly lead to enormous pressures on Respublika's current and past
registrars and hosting providers. The disclosure would lead to requests to
Respublika's registrars and hosting providers to cancel its domains and shut
down its websites. If our main domain were cancelled or shut down, Respublika
would lose a large part of the audience that has been visiting that domain
since September 15, 2008. The precedent would also have a tremendous chilling
effect on the freedom of the press for any remaining opposition journalists who
are risking their lives to report on Kazakhstan.’

Along
with her declaration, Petrushova included copies of newspaper articles
detailing the political climate and media crackdown in Kazakhstan. She also
included reports from human rights organizations that described Kazakhstan's
restrictions on freedom of expression and classified Kazakhstan as one of the
world's most repressive states.

The Republic of Kazakhstan v. Does 1-100,
supra.

The court also
explains that the Republic of Kazakhstan

opposed the motion
to quash. It argued that the news media shield law was inapplicable and that
the subpoena was not burdensome or oppressive. In support of its position,
Kazakhstan provided a declaration from Secretary Beketayev. He denied
Petrushova's accusations that Kazakhstan targeted opposition journalists. He
asserted that Petrushova and her husband were working for Mukhtar Ablyazov, a
Kazakh national who has been found by an English court to have defrauded a
Kazakh bank of $4.6 billion. Secretary Beketayev asserted that Petrushova and
her husband were working on behalf of Ablyazov to propagate the distribution of
the hacked e-mails and documents.

The Republic of Kazakhstan v. Does 1-100,
supra.

The next
development in the case was that a

hearing
on LMC's motion to quash occurred on April 30, 2015. After hearing argument
from the parties, the trial court concluded that the news media shield law was
inapplicable. But the court decided to limit discovery in two ways. First, the
court ruled that Kazakhstan could not obtain billing information, and it struck
this category from the subpoena. Second, the court limited the produced records
to `Attorneys' Eyes Only.’ The trial court denied LMC's motion to quash the
subpoena subject to these modifications. It entered an order stating as
follows:

`[e]Nom
shall produce the documents in categories 1 and 2 of the subpoena, with the
exception of “billing information,” by Monday, May 4, 2015. Categories 3, 4,
[and] 5 are withdrawn by [Kazakhstan]. The produced records shall be for
attorneys' eyes only.

¶
18 LMC appealed to this court. A commissioner of this court granted LMC's
motion for an emergency stay of the trial court's order.’

The Republic of Kazakhstan v. Does 1-100,
supra.

The Court of
Appeals began its analysis of the legal issues in the case by explaining that

LMC
argues that the trial court erred in its interpretation of Washington's news
media shield law. It contends that this shield law applies to the parties and
records sought in this case, because the purpose of the subpoena is to identify
a confidential source. We agree.

Washington's
news media shield law has its origins in common law. The United States Supreme
Court left it to individual states to determine how broadly to recognize a
reporter's privilege. Branzburg v. Hayes, 408 U.S. 665 (1972).
In Washington, our courts first recognized the privilege in Senear v.
Daily Journal–American, 97 Wash.2d 148, 641 P.2d 1180 (1982). There,
the [Washington] Supreme Court held that journalists have a qualified common
law privilege with respect to their sources of information, but it confined the
privilege to civil cases. Senear v. Daily Journal–American, supra. Two
years later, in State v. Rinaldo, 102 Wash.2d 749, 689 P.2d
392 (1984), the [Washington State] Supreme Court extended the qualified common law privilege for journalists
to criminal cases.

In
2007, the legislature codified this privilege in [Revised Code of
Washington] 5.68.010. In doing so, it extended the privilege both to members of
the news media and to nonnews media parties. [Revised Code of Washington] 5.68.010(1) applies
to the `news media.’ Under subsection (1), no judicial, legislative,
administrative, or other body may compel the news media to testify, produce, or
otherwise disclose:

(a) The identity of a source of any news or
information or any information that would tend to identify the source where
such source has a reasonable expectation of confidentiality; or

(b)
Any news or information obtained or prepared by the news media in its capacity
in gathering, receiving, or processing news or information for potential
communication to the public, including, but not limited to, any notes,
outtakes, photographs, video or sound tapes, film, or other data of whatever
sort in any medium now known or hereafter devised. This does not include
physical evidence of a crime.

The Republic of Kazakhstan v. Does 1-100,
supra.

The Court of
Appeals also noted that

[Revised
Code of Washington] 5.68.010(2) provides that a court may compel
disclosure of the news or information described in subsection (1)(b) under certain
circumstances. Thus, as the legislature explained in its final bill report, the
news media has an absolute privilege with respect to the information contained
in subsection (1)(a), and it has a qualified privilege with respect to the
information contained in subsection (1)(b). FINAL B. REP. on H.B.
1366, 60th Leg., Reg. Sess. (Wash.2007).

Washington's
news media shield law also contains a provision for nonnews media parties. That
subsection is [Revised Code of Washington] 5.68.010(3). In relevant part,
it states:

`The
protection from compelled disclosure contained in subsection (1) of this
section also applies to any subpoena issued to, or other compulsory process
against, a nonnews media party where such subpoena or process seeks records,
information, or other communications relating to business transactions between
such nonnews media party and the news media for the purpose of discovering the
identity of a source or obtaining news or information described in subsection
(1) of this section. . . .’

The
Court of Appeals then began the process of applying the analyses above to the
facts and issues in this case, explaining that

[h]ere,
Kazakhstan's subpoena seeks information from eNom, Inc., an Internet domain
name registration company. The parties do not dispute that eNom is a nonnews
media party, and thus, the relevant statutory provision is [Revised Code
of Washington]5.68.010(3).

The
parties also do not dispute that the information and records sought in this
case fall within the scope of [Revised Code of Washington] 5.68.010(3),
that is, they are `records, information, or other communications relating to
business transactions between such nonnews media party and the news media.’
Kazakhstan seeks:

1.Documents sufficient to show all
details of all current and former registrants, including any underlying
registrant using a privacy or proxy service, of the Domain Name including, but
not limited to, his or her email address, physical address, phone number,

2.Documents sufficient to show the
dates, times and corresponding IP Addresses and/or Mac Addresses from which the
Domain Name was registered, created or modified.

The Republic of Kazakhstan v. Does 1-100,
supra.

The Court of
Appeals then enunciated its holding in the case:

The heart of the
dispute is whether this subpoena seeks these records and information `for the
purpose of discovering the identity of a source or obtaining news or
information described in subsection (1) of this section.’[Revised Code of Washington] 5.68.010(3). Again, subsection
(1) protects against disclosure of, among other things, `The identity of a
source of any news or information or any information that would tend to
identify the source where such source has a reasonable expectation of
confidentiality. [Revised Code
of Washington] 5.68.010(1)(a).

As Kazakhstan
stated in the trial court and on appeal, it seeks the documents in this
subpoena for the purpose of identifying the individual who illegally hacked
into the e-mail accounts and stole the confidential materials. Specifically, it
seeks the IP and Mac addresses to cross-reference against IP addresses that
accessed Kazakh government servers at the time of the alleged hacking. And it
seeks the domain name registrants' identities because they `can help confirm
who hacked into Kazakhstan's computers and stole privileged documents.’

Kazakhstan seeks to
establish either that the registrants are the hackers, or that they have
information that can lead to the hackers. Both purposes are prohibited by the
shield law. By seeking to establish that the registrants are the hackers,
Kazakhstan's purpose is to identify `a source of any news or information.’ [Revised Code of Washington] 5.68.010(1)(a).
By seeking to
establish a link to the hackers, Kazakhstan's purpose is to obtain information
`that would tend to identify’ a source of news or information. [Revised Code of Washington] 5.68.010(1)(a). Accordingly, this subpoena falls within the plain language of
the statute.

Kazakhstan argues
that in journalist parlance the word `source’ is a term of art. It cites
several cases and technical definitions to support this argument, including one
authority that defines `source’ as a `[p]erson, record, document or event that
provides the information for the story.’ Relying on these definitions,
Kazakhstan contends that for the news media shield law to apply, LMC must
establish that the registrant is the source that provided the stolen materials
directly to Respublika's journalist, or that the registrant would tend to
identify the source that provided the stolen materials directly to Respublika's
journalist.

Kazakhstan further
claims that LMC is unable to do this, given its statements that it obtained the
e-mails from a public source—the WordPress website. In New York federal court,
LMC filed a letterstating that `Respublika
found the documents the same way the rest of the world did—after 69 gigabytes
of documents were anonymously posted to kazaword.wordpress.com.’LMC's attorney made similar
representations to this court at oral argument for this appeal.

The Republic of Kazakhstan v. Does 1-100,
supra.

The Court of Appeals, though, was not
persuaded, explaining that

[w]e decline to
read the statute so narrowly. The plain language of [Revised Code of Washington] 5.68.010(1)(a) is very broad. It protects against disclosure of the identity ofasource ofanynews or information. It also protects
against the disclosure of any information thatwould
tend to identifya
source. By requesting registrant information and IP addresses for the purpose
of discovering the identity of the hackers, Kazakhstan impermissibly seeks
information that falls within the plain language of [Revised Code of Washington] 5.68.010(1)(a).
Accordingly, LMC's statement that it obtained the stolen
materials from a third-party website does not prevent it from invoking the news
media shield law.

The Republic of Kazakhstan v. Does 1-100,
supra (emphasis in the
original).

The Court of Appeals therefore held that

the Washington news
media shield law prevents disclosure of the information sought by this
subpoena. The trial court abused its discretion when it denied LMC's motion to
quash. In light of this conclusion, we need not address LMC's arguments that
the discovery order should be reversed because Kazakhstan is engaging in
improper claim splitting or because the subpoena violates the Washington
Constitution. We also need not address LMC's arguments that the discovery
order is burdensome and oppressive.

We reverse the
denial of the motion to quash the subpoena and remand to the trial court to
dismiss the action.